Of All The Coats, In All The Scenes, In All The Films: Burberry Threatened Over Humphrey Bogart Publicity Rights

from the this-could-be-the-beginning-of-a-beautiful-lawsuit dept

One of the cooler features of Facebook's Timeline for businesses is the ability to go back and fill in milestones and events over the years. Some companies have long and very interesting histories, and for them a historical timeline is the perfect opportunity to engage in advertising-as-content. This is clearly what famed luxury brand Burberry was trying to do when they filled out their timeline with vintage advertisements and examples of Burberry's role in fashion and culture—including an image from Casablanca of Humphrey Bogart wearing a Burberry coat. Naturally it wasn't long before they started receiving legal threats from the company that controls Bogart's publicity rights and the trademarks associated with his name—but Burberry is fighting back. PaidContent reports that they have filed for declaratory judgment that their use of the image is not infringing.

As the filing (embedded below) asserts, Burberry's use of the image is legitimate in every way and clearly protected by the First Amendment. The company is simply showcasing a factual, historical example of an important use of the brand, and there is no reasonable alternative way they could convey the same information. Even in terms of copyright, Burberry would have a strong fair use argument—but the company actually obtained the necessary copyright licenses for the image, so that's not even an issue. In terms of trademarks and publicity rights, the infringement claim is even more spurious: the use of the image in no way implies personal endorsement or any commercial connection to Bogart. The only implied endorsement is that a Burberry coat was part of an iconic outfit from an iconic movie—and that's a plain and simple fact that anyone is free to report. Using a single frame from a film to demonstrate that fact is a clear-cut case of free speech, regardless of any rights that may be attached to the image or the celebrities therein.

We've noted before that publicity rights are new and kind of scary. In some ways they make the same kind of sense as trademarks: it's in the best interest of both companies and the consumer that brands can't misrepresent celebrities as endorsing their products when they actually don't, just as we don't want brands unfairly capitalizing on each others' goodwill. But, just like trademarks and every other form of intellectual property, publicity rights are breeding an ownership mentality where people think they can control any and all uses of something. These threats against Burberry are a prime example of that—and hopefully the judge grants them their declaratory judgment and sends a clear message that publicity rights do not supersede freedom of speech.

Perhaps publicity rights should be life of celebrity + 0 years. Why should Fred Astaire's descendants get to decide whether he would have endorsed a particular vacuum cleaner? They don't care about his legacy, they are just riding the gravy train.

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Perhaps publicity rights should be life of celebrity + 0 years.

To be clear that IS the case with most publicity rights laws. The majority of them do not confer any rights after death. There are just a few states whose publicity rights laws do allow the rights to live on after death.

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Now that's just silly. The unspoken rule is clearly that whoever has the more profitable commodity to license gets legal preference. People who have never heard of Burberry have heard of Bogie, therefore Burberry should have to pay retroactively for Bogie wearing their product as free advertising!

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It could be argued that his lung cancer-induced death did increase the value of his celebrity status by decreasing the available supply, so yes, in that light, the Bogart estate should be paying the tobacco companies.

Unfortunately, by the same logic, the Hemingway estate should be paying Abercrombie and Fitch for selling Ernest the gun with which he shot himself...

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Like the fashion industry has never done this...

Naturally it wasn't long before they started receiving legal threats from the company that controls Bogart's publicity rights and the trademarks associated with his nameóbut Burberry is fighting back.

What if the situation were reversed? Who believes that Burberry would have raised a stink if Bogart's people had made some special notice of the fact that he wore a Burberry coat in the movie? I'm looking at you, LV!